Radicals for Capitalism

by Henry on November 17, 2012

Some of the bits of the Web that I pay close attention to are trying to figure out how to react to the Republican Study Committee’s new thinkpiece on copyright. On the one hand, they want to cheer on every word of the document, even if it is written from a more directly market-oriented perspective than their own. E.g.:

Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly … It is a system implemented and regulated by the government, and backed up by laws that allow for massive damages for violations. These massive damages are not conventional tort law damages, but damages that are vastly disproportionate from the actual damage to the copyright producer. … we do know that our copyright paradigm has … Retarded the creation of a robust DJ/Remix industry … Hampering scientific inquiry … Stifling the creation of a public library … Free 12-year copyright term for all new works – subject to registration, and all existing works are renewed as of the passage of the reform legislation. If passed today this would mean that new works have a copyright until 2024.

On the other … Republican Study Committee. Republican Study Committee claiming the mantle of protector of DJ culture, scientific inquiry and public library. But still. Republican Study Committee.

I don’t know anything about the motivations of the aide who wrote this paper. However, I think it’s reasonably safe to speculate that if the Republican party takes this up, it will be less because of its burning desire to promote a healthy remix culture (‘tho perhaps their desperation to appeal to the kids might play a small role), and more because they’d like to screw an industry largely composed of people who give to the Democratic party (think movie stars and record industry executives as trial lawyers). One could be more cynical still, and see this as a shakedown intended to encourage entertainment industry people to give lavishly to Republican PACs so as to sway them away from the cause of righteousness (personally, I doubt this was the rationale for the paper, but it certainly might end up describing the outcome).

Even so, it poses an interesting question. Would we be better off in a world where this position prevailed, so that (a) copyright law was much looser, (b) the entertainment industry was much poorer, and (c ) giving to the Democratic party and other liberal causes was significantly lower as a result? Personally, my answer is emphatically yes, but there is a tradeoff here, where others might reasonably disagree (and perhaps even convince me that I’m wrong …).

I don’t think that it is in any way a given that looser copyright laws would result in a poorer or smaller entertainment industry: people paid for art long before copyright existed as a concept, and Disney managed to (and continues) make a fair penny off of characters that are explicitly in the public domain.

Would some of the existing players go out of business? Sure. But a public policy structured around the idea that 20th Century Fox must always exist as-is makes no more sense than policy designed to ensure that Citigroup does.

Presumably total expenditures on entertainment wouldn’t go down; demand woulnt fall, and someone would figure out how to charge what the market will bear.

But maybe– only maybe– the cash flow would end up in more dispersed hands, making it hard to have the kinds of concentrations of wealth that enable huge donations. The hypothetical Kickstarter future will presumably not be populated by moguls.

I wouldn’t bet against the studios & company, though. They’ll probably figure out a way to win…

The answers to those final questions are so obviously Yes that I can’t believe Henry is posing them with a straight face. Should any thug, rent collector or parasite be able to buy a political indulgence with an appropriate-sized contribution to the Democratic Party?

Henry: I propose that the US government grant an exclusive right to blogging to a private business. To continue operating Crooked Timber, you will have to pay that business whatever royalty they set, and accept whatever conditions on your content that they impose. Do you need to know which party the business would be writing campaign checks to before deciding what you think of this law?

Besides, as others have said, the assumption that looser copyright = smaller entertainment industry is open to doubt, to say the least. Boldrin and Levine may be libertarians, but they do seem to have a lot of facts on their side…

Is it even guesswork to say the entertainment industry wouldn’t really be impoverished? I thought it was quite well documented that the overwhelming majority of profits on creative works are earned early on. Only a tiny fraction of such works keep making serious money decades after they’re produced.

It has always seemed to me that the vast majority of profit from a movie comes within the first year. Likewise recordings, books, and any number of other artistic ventures. Sure, there is some profit to be made from spin-0ffs, which last a while longer.

If the purpose is to promote creativity, letting people (or worse, corporations) lock in some small profits over long periods seems counter-productive. Sure, give people a decade. But several decades? Hell no. The world is moving far too fast, and those values are discounted too quickly.

To add some more complexity to this issue, I believe that different branches of the entertainment industry would be disparately affected.

For example, there is some evidence that in the music market piracy (that is a good proxy for “no copyright laws”) is bad to the majors, but not so bad for the artists, that can profit more directly from live performances. The same doesn´t apply to movies, nevertheless. So maybe the movie industry would have to reorganize along very different lines, in an world where the formulaic blockbuster with huge budgets wouldn´t be profitable anymore but small and very creative productions could still thrive, specially if crowdfunding models get some traction. Is this bad? :)

So if this had always been law, would anything prior to 2000 be public domain now?

If technology has invalidated the business model of “mid-list”/ back catalogue artists (and soon authors), wouldn’t this destroy all the other franchises which still somewhat subsidise the mid-list and obscure stuff?

There seems something wrong where talented musicians who would have been able to live off album sales in the 70s-90s make a small fraction of what minor-league bloggers do, and only by touring constantly, without health insurance: http://www.vulture.com/2012/09/grizzly-bear-shields.html.

The money Democrats get from the entertainment industry isn’t really as important as the publicity, and the publicity doesn’t come from the industry so much as from individual performers. The party will do fine.

The idea does have one disturbing effect, though– if copyright goes down to twelve years, Republicans will be able to use any classic rock tunes they want for campaign theme music, and the artists won’t be able to stop them. (Talk about your Nefarious Hidden Motives!)

Many of the arguments in the policy brief apply also to patents. Curtailing intellectual monopoly with respect to patent law would have an even bigger economic impact across a broader range of industries not all of which are affiliated with a single party (pharmaceuticals for instance).

In acse anyone is interested, my post on Boldrin/Levine, in relation to Bowles/Jayadev, is here:

mjfgates: I am foursquare in favor of unintentionally ironic appropriation of music by the Republican party. Few things are so darkly hilarious as watching an oligarch mount the stage to rapturous applause from his toadies as the first verses of “Born in the USA” play: “Born down in a dead man’s town / the first kick I took was when I hit the ground / you end up like a dog that’s been beat too much / then you spend half your life trying to cover it up.” America, fuck yeah!

Are they claiming we don’t have a robust DJ/remix culture, or that copyright concernss stifled the development of hip-hop?

As if anyone really gave a crap about mix-tapes or pirate radio – as if DJs don’t often act as if they ‘own’ breaks they have ‘discovered’, as if they were something they had created, rather than found. The accusations of thievery when someone copies a particular sequence of tunes in their own set.

Nope – what was delayed was the commercial packaging. The real deal did not seek permission.

Or in a contemporary sense – it is YouTube’s owners who want to commercially exploit content and find copyright a hindrance – not the oft illegal culture that is around me when I turn on the radio here in East London.

Their concern is fake. It is for the capitalists bound by laws, not for cultural entrepreneurs.

Copyright and other IP are labor rights – even if often abused and distorted. Of course multi-national marketing organizations and their flacks hate the idea of paying. Let’s go back to the good old days when artists and musicians had to find patrons and kiss their feet.

There seems something wrong where talented musicians who would have been able to live off album sales in the 70s-90s make a small fraction of what minor-league bloggers do, and only by touring constantly, without health insurance

There seems something wrong where talented musicians who would have been able to live off album sales in the 70s-90s make a small fraction of what minor-league bloggers do.

Ergo, bring back payola?

The music industry as constituted in the pre-internet era enriched a very, very, very few musicians entirely by accident or afterthought. The vast majority were sharecroppers and treated as such, and the bulk of the profits accrued to a small number of record labels. This has been amply documented, and anything that contributes to breaking the spine of that system is to be celebrated.

JulesLT: Spreading culture requires the activities of promotors. If you want the “real creators” unable to book a dancehall for fear of an injunction, have their websites go down because of a copyright notice, or get sued if they try to make some money from their creations, I don’t think you are really protecting their interests.

rootless, plenty of creative industries do not have copyright protection, such as cooking, fashion, and interior decorating. What killed the record industry was a decrease in the cost of music production technology, not copyright infringement. This decrease lead to new entrants with better terms for artists. Copyright doesn’t affect publishers in the book industry, who buy the rights from the author. (Check Asimov’s contract terms and the SFWA terms) It’s about the relation between author and consumer, and increasingly between different authors.

Your facts are not so good. For example, there are many design patents in fashion and trademarks are very important. Secondly, costs of production have nothing to do with sale price or IP protection. Consider the integrated circuit business as an example. Thirdly, musicians did not all of a sudden find better terms – in fact many of them are now reduced to selling advertising jingles for a living while the huge multinationals that exploit their work pay ever less.

” Copyright doesn’t affect publishers in the book industry, who buy the rights from the author. “

Why would Republicans want looser copyright law? The reason is of course, money. They figure (or at least imagine) that there’s an untapped market in the repackaging/remixing IP industry. They want in, but can’t get there under the current rules, because the media corporations have rigged the system to their benefit.

Disney, for example, now owns not just most fairy tales, but the Muppets, Star Wars and the entire Marvel cannon, for what is essentially forever. They could spend the next century just playing mix and match with their toys, confident that they’ll make a few billion dollars annually without ever having to come up with anything new. And all the Republican law makers might get out of it is a few bucks in taxes, but even that’s not a sure thing, since tax law has been taken out back and shot through the head, there are so many loopholes.

So, floundering for new revenue streams, our Republican think tank must advocate for either raising taxes (which is a cardinal sin), or argue for looser copyright laws, in the hopes that this whole DJ/remixing sub-culture can be brought safely into the mainstream and monetized.

I don’t find the policy brief very convincing. For example, how many people have heard (much less argued) the myths that “Copyright is free market capitalism at work” or “The current copyright legal regime leads to the greatest innovation and productivity”? How would making 12-year scientific papers available on Google Scholar change “scientific analysis”? I’ve heard different and better arguments for changes to the copyright laws; this brief is just odd.

rootless, Asimov’s buys the rights to the first publication in English of a story. SFWA tells its members not to sell their copyright. Trademarks do not protect design elements from being reused as far as I know. Music publishers used to purchase the copyright to songs (that is they became the owners of the recording rights. The composer retains other rights… It’s complex). They don’t anymore because they supply much less of the capital for recording a song, and so cannot claim as much of the output in return. (yes, recording used to be expensive). IC circuit masks are copyrighted, and there are companies that sell masks. Making ICs is capital intensive, but unlike the music industry design (labor-intensive) and manufature (capital-intensive, high volume) have separated so that relatively few foundaries can be kept extremely busy.

LMHV does not regard its patents as important enough to warrant discussion in its quarterly results. There is also a book, “The Knockoff Economy” discussing the relative lack of protection for fashion and cooking, and standup comedy. (Jokes cannot be protected by copyright, only their exact expression). This was recently discussed on Volokh conspiracy.

Music publishers used to retain half of the copyright earnings and all of the mechanical rights in return for promoting the music, not for physically making the records. Performers finally wised up and formed their own music publishing companies. Music publishing works entirely differently from, say, book publishing. See the wikipedia article on Tin Pan Alley, for example.

Before I decide where I can stand on this copyright issue, and what you should therefore believe, please let me check with the Disney corporation to find out how this might affect Donald Duck, Mickey and Minnie Mouse, Goofy, Huey, Louie, and Dewie, and my stock holdings. Oh, and also Scrooge McDuck, and those other Republicans.

rootless, Asimov’s buys the rights to the first publication in English of a story.
—-
Something authors can sell only because they own the copyright.

” Trademarks do not protect design elements from being reused as far as I know.”

So sell something that looks just like Levis or DKNY without the trademark and see if you get the same premium.

“They don’t anymore because they supply much less of the capital for recording a song, and so cannot claim as much of the output in return”

But they must pay the composers only because the composers have copyright. Otherwise, like book publishers before copyright, they could reduce expenses and increase profits by marketing other people’s work.

” IC circuit masks are copyrighted, and there are companies that sell masks. ”

and heavily patented. And per chip production costs are low, yet IP for chips is valuable.

The problem with Rajiv’s economic arguments against IP is that his source misrepresents the technology history. For example, steamboats were developed first in the USA where Watts patents did not apply and Trevithick’s high pressure engine took a long time to perfect, but did not run into Watt’s condenser patent at all (it vented steam). etc. etc.

I’ll admit to being more conflicted about copyright law than I am about patent law. This may be partly because I know a number of authors much of whose income comes not from current or even very recent publications, but from their backlist. This is particularly true of authors who write series genre fiction. Someone coming in at book 7 of a private eye series might have an incentive to then find, buy, and read books 1 through 6. With very short copyright periods, some, possibly all, of those books would be public domain. Which somehow seems unfair to me. I’m less concerned about writers of “blockbuster” novels; they can do very well from short-term sales. But a similar issue applies. For work that endures (and we’ll see about Harry Potter), a fair amount of the total sale may occur long after intitial publication.

I therefore have some sympathy for longer copyright protection. But the current regime is more like “forever” copyright protection, which seems not to have anything to do with fostering creativity. I have no idea where the line should be drawn, but, somehow, the 28-year initial copyright with one 28-year renewal (the law when I became conscious of copyright law) seemed then and seems now to be ample.

Of course the end of copyright law would decrease donations–the opportunity to influence IP law surely motivates Hollywood to dig into their wallets deeper.

There seems something wrong where talented musicians who would have been able to live off album sales in the 70s-90s make a small fraction of what minor-league bloggers do, and only by touring constantly, without health insurance

I suppose, but if humanity has to choose between having a viable commercial music industry and having the Internet, I would vote for the latter. It’s insanity to implement the kind of surveillance/censorship regime that would be required to end piracy just because it’s not as much fun to be a rock star as it used to be.

Not having health insurance = society fail

I take this further–unlike “fuck me or your fired”, the struggling of artists actually is a problem best solved by a guaranteed minimum/universal basic income. Give everyone the capacity to do what they love as long as they’re willing to live at a subsistence level.

Can we avoid the term IP? Copyright, patents, and trademarks do different things. They are not all aspects of the same underlying principals. Furthermore, this is very fine-grained policy. A policy for pharmaceutical drugs is dealing with a very different industry then one for software. These are monopoly rights granted for purposes of social benefit, and have to be analysed as such.

I think it’s a long way from a ‘study committee’ to actual policy, during which the studied ideas will be modified to suit the major stakeholders in the room, whoever they are. Libertarian-sounding noises are often heard where Republicans gather, but this does not mean the Republicans are actually libertarians; it is more a sort of seemly auditory decor which can be set aside when serious business is at hand.

The arguments that a lower copyright would not mean a less profitable entertainment industry are very poor. It’s confused to think that the copyright is 80+ years because of the money to be made on 80-year-old works (although there is some). But the major reason for such long copyrights is to limit the size and quality of the public domain, to prevent the public domain from being competitive with the private domain (so to speak).

If copyright was only 14 years, theaters could start to pop up that screened classic films from 1920-1998. There are so many to choose from that they could screen a new one every week, or every day. At the very least, some films made before 1998 would pull in enough customers (even if fewer) to make it worth choosing them instead of choosing newer films requiring royalty payments.

Then there’s the DVD market. A free online library of every film made before 1998 would not help anyone sell DVDs.

Of course, the public has an interest in rewarding content creation, but the public also has an interest in establishing a vibrant and living public domain (from which to create content!).

The public interest in a strong public domain has increased immensely owing to the internet and to new copying/editing technology. In a certain sense, if I can’t link to it, or if I can’t copy and paste from it, then it doesn’t really exist. It’s not living. It’s like an artifact of archaeology — like some papyrus scroll, etched with Sanskrit, slowly rotting in a museum basement.

@Fu Ko: You seem to be assuming a high degree of substitutability of creative goods, as well as copyright owners charging more for back catalogues then they actually do. Doc Films exists. People still see the latest James Bond instead.

@maidhc: Again, record companies traditionally bought the copyright to songs because they had that degree of power. It’s important to note that if Solomon Linda had not sold the rights for a pittance, that he would have been collecting from day one.

The last point, and it’s one I really should not have to make, is that copyrights are the classic example of quasi-rents. Once a work is made there is no reason to grant someone the exclusive right to produce it, were it not for incentivizing the creation in the first place. As such, every dollar of revenue the entertainment industry takes in is economic damage balanced only by the social value of creating new works. This is not about the public interest in nebulous terms: it is about the extraction of rents from the public with the aim of producing new artwork. Other mechanisms might work better.

The anti-copyright argument is basically the union-busting argument and all the fulminating about corporations obscures the reality that the workers, the people who create music/writing etc. are to be transformed into wage workers at best, and more likely into casual laborers.

I’m an artist. During my career I’ve created quite a few artworks that sold well as reproductions. But those good ideas don’t fall out of the sky. And none of them made me rich. I made a living.
On occasion people tried to steal my ideas. When that happened I was very glad to have copyright protection for my intellectual property.
One man was distributing a horrid copy of my art. When I confronted him he gave me all his remaining coppies and sneared that they weren’t selling well anyway. Maybe because they were mud ugly. The fact that they were so ugly was the worst part. Not only was the fool not making any money but he was dirtying up my art that I had invested a lot of time and money in.
Copyright is not just about the money but also about creative control. If you want to control an idea then create one, an original one of your own. Sorry but you can’t take mine. I’ve worked too hard and too long to give them away.

Newsflash rootless: no one on this thread is talking about abolishing copyright. Right now the vast majority of authors don’t realize any gains from hundreds of additional years of copyright protection: their works get pulped when they don’t sell. But libraries, readers, and other authors all lose out when these works are kept unavailable. The question is whether the gains to the public from encouraging the production of such works outweigh the costs of the method by which that encouragement is produced. Bitching that authors won’t make as much money is completely irrelevant: they can do something else instead, which much of them already have to.

Authors already have problems making money from their work. Very few are full-time writers. Changing the copyright law might make this harder. It would also make it so that there are more books to read, generally a good thing. Can you explain why this isn’t like arguing against a highway since it cuts off a motel?

Musicians were slaves to the record companies way back when because they sold their copyrights. If those had lapsed, they would get back what they had once given away. Instead they have to try very hard to get back new rights like digital distribution and such.

Newsflash fred: Copyright does not protect ideas, only their expression. Moral rights exist in French copyright law, but not the US, and are not part of the rational for creating copyright law in the US.

Authors already have problems making money from their work. Very few are full-time writers. Changing the copyright law might make this harder. It would also make it so that there are more books to read, generally a good thing. Can you explain why this isn’t like arguing against a highway since it cuts off a motel?

Construction workers already have problems making money from their work. Very few are full time employees. Changing employment law to eliminate unions might make this harder. It would also make it so there are more employees to hire, generally a good thing.

A copyright is a government granted monopoly to the reproduction of a particular fixed expression of an idea. It is entirely a statutory creation. From an economic perspective such a monopoly is a rent, and so its owners are holders of capital, not labor. That the producers of such capital once expended labor in its production does not change the nature of what they hold.

A union does extract a quasi-rent, but in the form of higher prices for labor. A union is a provider of labor like any other, with the exception of its political action of creating a union of the proletariat. It is the second reason for which they require our support.

The SAG demands residuals because its members do not own the capital they create. SFWA doesn’t worry about residuals, because its members own capital. This is a fundmental difference: if construction unions were also landlords, I’d be against them to. (This is not to say that SFWA is a bad idea, but rather that its interests conflict with the reading public’s in a way that the SAG’s don’t)

Bottom line: Authors are capitalists in a way that most workers are not. This has political consequences.

“A copyright is a government granted monopoly to the reproduction of a particular fixed expression of an idea. It is entirely a statutory creation”

All property rights and all economic rights are government granted monopolies that are entirely statutory creations. The theory that David Koch has a morally sounder claim to his 5th avenue apartment, real-estate, and stocks than James Brown had to his songs or a union carpenter has to a job is basically absurd. Libertarianism is unable to provide any guidance because it is based on the lie that some forms of property are natural phenomena that are morally sound while other forms of property, generally ones in which a worker derives some rights to the products of her labor, are icky state coercion.

” From an economic perspective such a monopoly is a rent, and so its owners are holders of capital, not labor.”

So e.g. a physician or lawyer who relies on government licensing to protect a higher wage, a teacher who relies on government enforcement of contracts, a union worker with a pension benefit … ? Basically, any worker who struggles up from casual labor has some additional rights, some purely statutory inventions, that provide him or her with more compensation than a frictionless market. The theory that only the investor class deserves to reap profits at a higher rate than day labor is a political/moral theory, not an empirical fact.

One can certainly argue about what would be the most socially beneficial forms of property rights, but to start with an artificial and ideologically creepy distinction between natural property rights and ones supposedly deriving from state power – as if markets and commerce existed outside of states – is to commit to moral and analytical confusion.

We seem to have ended up in the same place we often do … caught up in metaphysical wranglings about the natural or conventional status of property rights. But that doesn’t seem to be the right way to frame things.

Start here instead. Does it seem prima facie unjust if Cain uses some X that Abel claims is his without Abel’s permission (or without recognizing or compensating Abel in some way)? If the state fails to recognize or respond to Abel’s claim, is the state failing in some way to act on a reason it ought to be sensitive to?

Note that when legal systems make decisions on who owns what they often seem to be not simply applying some past state decision but trying to track widely held intuitions (that often hold cross-culturally). For example, concerning whether a hunted animal belongs to the hunter who initiated the chase or the one who seized it.

My hunch is that most of us believe that creators of original works ought to be able to restrict their reproduction, sale, etc by others and to benefit economically from their creation for a while. Certainly we believe that if Sony or Disney comes along and (in order to make money themselves) just uses what some independent person has created without permission or payment, Sony or Disney commit a wrong against that person. Accordingly, there is good reason for the state to put in place positive legislation that is sensitive to such facts and moral beliefs and which protects creators against being treated like that. Since, however, there are also other interests at stake, including of would-be creators, to make use of our shared cultural heritage, it looks as if we should have something like a time limit. Hence a sensible copyright law.

It recognizes and protects people who have done creative work, it stops the corporate sharks from eating the creative minnows, but enables “fair use”, expires after a while, etc.

Unfortunately, much of the current argument is between different species of corporate shark, betweeen the sharks who want to eat the minnows for free now and the sharks who have extensive copyrights that they are deriving rents from, who want to extend the term to ridiculous lengths. Neither species of shark has a case. But novelists, poets, artists and photographers do. A case not to be ripped off by sharks.

All workers are capitalists over their own labor power. But if a union fights to make its members capitalists vs. fighting to protect their interests as workers it has abandoned the core principals of the labor movement. Luxemburg is instructive on this point, as is Adorno.

The harms of copyright are much greater then the harms of private ownership of food, because we would not all feast if the right to own food were abolished. By contrast, we would all have music sans copyright: copyright is a novel invention. A Humean view of property rights as useful would still make the distinction. (Also, copyrights, unlike property rights, end) Patents end even sooner, yet are generally more valuable then copyright.

Licensing is a form of capital, but not entirely. Licenses are usually nontransferable. Where licenses are transferable, workers are immiserated. (See taxi medallions in NYC for an example) Furthermore, it isn’t clear that limiting the number of doctors is in the class interest of the proletariat.

Watson Ladd 11.18.12 at 3:19 pm: ‘Newsflash rootless: no one on this thread is talking about abolishing copyright.’

I would be glad to; well, not exactly glad, but I’d step up to it; but this discussion is as yet too far back. I mean, when one confuses a voluntary exercise of the rights of association, expression, assembly and contract, as embodied in a union, with monopolies granted by a government to wealthy corporations, or says that all property is monopoly — it’s too much heavy lifting for me.

@56 “The harms of copyright are much greater then the harms of private ownership of food, because we would not all feast if the right to own food were abolished. “

So we starved to death while happily listening to free Rihanna downloads.

@55

Unfortunately, much of the current argument is between different species of corporate shark, betweeen the sharks who want to eat the minnows for free now and the sharks who have extensive copyrights that they are deriving rents from, who want to extend the term to ridiculous lengths. Neither species of shark has a case. But novelists, poets, artists and photographers do. A case not to be ripped off by sharks

Agree.

@56 ” Luxemburg is instructive on this point, as is Adorno”

That’s a fundamental error derived from Marx’s internalization of the economists false distinction between state and economy.

JW Mason:
No. Although Mark Twain disagreed. I’d like to see real-property and financial asset titles expire too, though. That is, I reject the libertarian theory that owning real-estate (for example) is natural, while owning a song or story is unnatural. As a practical issue for patent/copyright expiration, I’d like those to be delayed far enough to remove the incentive for large corporations to simply appropriate and drag out proceedings.

I can’t be the only one looking on with bemusement at the curious spectacle of dialogue between rootless and Watson Ladd; on any subject, let alone one as fraught with dubious moral imperatives and dynamic conceptual subtleties as intellectual property law and economics, it was bound to be a curious and confusing controversy. Some sort of furious agreement does seem to be emerging from the exchange, though maybe that’s just seeing shapes in clouds. I wonder if the principals see agreement on important points emerging?

There are “entrepreneurs” who go around to nursing homes buying up copyrights from distressed and dying artists or the heirs of recently deceased artists, even cutting in nursing homes on the deal. Then they keep these works of art (films, songs) off the market for ever on the off-chance the rights will be a bonanza. Often the legitimate heirs of the artist are completely cut out. As is the public. This is an area where there is a lot of ruthless criminality. The music publishers and media conglomerates are also in on it.

Yes, we do end up in metaphysical wrangling. That’s because property rights are metaphysical. If you are going to discuss property rights, you have no other place to discuss them, then in a fictive realm of moral narratives and speculative analysis and counterfactuals.

Can we start from moral intuitions and do any better in navigating this metaphysical realm? I seriously doubt it.

Every institution, regardless of the particulars of its architecture, makes use of norms and moral imperatives, but not the same norms and moral imperatives. The moral imperatives are prescribed, as part of the design, to make the institution function, and they are particular and subsidiary to the institutional design. I suppose we re-use the same moral patterns — we have a moral pattern language, in a sense similar to Christopher Alexander’s notion of a pattern language in architecture, only in this case, the architecture is one of institutional design.

Some aspects of that pattern language are adaptations to human nature. To the extent that the prescribed moral imperatives of an institution are part of a kind of user interface for a game in a virtual, metaphysical space, then the moral imperatives have to be adapted “on one end” to the particular requirements of the particular institution, and “on the other end” to the capacities of human beings. The adaptations of moral narrative/imperatives to human nature are going to be more “universal”, but those universal elements don’t tell us all that much about the design of the game, anymore than the design of a computer mouse, or a graphical user interface, tells us much about the architectural design of a computer accounting program’s database.

So, yes, in the developed world of modern capitalist institutions, when clan and tribe and lord of the manor and commons are forgotten and family is nuclear, we try to make the pattern of individual claims of fee simple possession-and-use of personal property and contracts between free and equal individuals fit every institution we invent. Somewhere in the murky commonalities, there may be a moral intuition lurking, some basic idea of equitable fairness, perhaps, but mostly, I think, we see the sharp edges of a common pattern, used and re-used a thousand times in daily life, and three or four hundred years in the making.

Copyright, trademarks and patents were, themselves, key precedents in the making of capitalist institutions, and their accompanying, prescribed moral reasoning (or “intuitions”) concerning what is “fair” and equitable. (The idea that the law should be guided by “equity” considerations was itself an innovation on the road to modernity.) The familiar species of intellectual property arose from (I suppose without knowing many of the details), and replaced an earlier scheme of guild charters and rights, contemporaneously with the gradual extinguishment of feudal tenancy, commons, manors and dues.

I bring up the history only in order to remind that institutions are emergent and that they evolve dynamically under pressure over time, as they have to be reproduced thru time in a politics of constant and strategic dispute. Going back to first principles is not just a libertarian fetish; it is a strategy for inducing institutional change, by changing the rationales that guide reproduction of rules and practice.

As economic institutions, the various institutional creatures we group together as intellectual property, are fundamentally instrumental means of facilitating social cooperation in satisfying material needs and desires. As such, we have to ask, does the institutional design “work”? Are these institutions efficient and effective means of social cooperation for economic ends? And, that includes the prescribed moral norms and imperatives that guide the “gameplay” of institutional functioning.

The language of moral rights sometimes obscures from common sense the extent to which institutions are always about mediating the conflicts, which arise from a decentralized social cooperation.

What I would say about intellectual property is what I would say, in general, about economic rents. Economic rents are a powerful means for structuring the incentives of the economy. Dynamic efficiency requires that economic rents erode over time, or, where that is not possible, that economic rents be taxed away, to finance public goods. (I think Watson Ladd was trying to make much the same point I am, about the necessity of rent erosion, by distinguishing quasi-rents. I’m not sure.)

The Coase Theorem gets a key aspect of institutional efficiency right: the point of instituting property rights is to enable people, attempting to cooperate economically, to do an efficient deal. The institutional details of what the property rights are, do not matter (to efficiency), as long as the property rights are well enough defined, that people with interests in conflict can use those rights to do an efficient deal. The point of property rights, qua institution, is the deal that resolves the inevitable conflict and allows cooperation to go forward.

The problem with economic rents is that, carried to an extreme, they allow the rentiers to block forward motion, to dictate terms in negotiation, prevent productive social cooperation and starve the provision of public goods.

Something has gone wrong with intellectual property law if the “owners” of “Wonder Bread” and “Hostess Twinkies” are ditching a $2.5 billion a year bakery business, so they can make off with the trademarks. Something has gone wrong, if Apple can replace the vast distribution apparatus for music recordings with a server farm — a reduction of invested capital and operating costs of probably two orders of magnitude (100x !) — and then raises the price of a song from $0.99 to $1.29. Something has gone wrong, when owning patents on seeming common-sense ideas implemented in software and harrassing large corporations with litigation constitutes a successful business model.

I don’t have the definitive analysis of what, exactly, has gone wrong, but I will offer that the key is the failure of rents to erode and the inability to do a deal, aka the inability to make productive use of available resources.

Prescribed morality and norms come into this, as disputes over what is a “legitimate” use of available resources. If a Sports League publishes game results, when is it “legitimate” to re-broadcast information about who won, and what the score was? When should it be permissable to make creative use of the corpus of songs and literature in new songs and new stories? I don’t know the perfect answer, but I think Coase points in the right direction: we want the deal to be done and productive activity to go forward.

The commenter, whose art work was reproduced badly and who was able to take possession of the bad copies, is adamant, a moral expression. If the institutions of intellectual property permitted him to do a deal, as apparently they did, then, to my mind, they worked. I would not want the artist’s adamancy, though, to translate into an absolutism that would retard all competition to erose IP rents, or all cultural, creative synergy.

Yes. And, as in the Hostess Twinkie case, and in many other cases, it is pretty clear that financialization of the economy is at fault.

Money in its extended forms as debt, is, like intellectual property, a form of fictive capital, and ultimately, the only uses for fictive capital are frauds, usurious extraction and gambling — all species of casino capitalism.

“I’d like to see real-property and financial asset titles expire too, though. That is, I reject the libertarian theory that owning real-estate (for example) is natural, while owning a song or story is unnatural.”

OK, so I’ll turn this around on you. “Land titles are labor rights, even if often abused and exploited. Land-value taxation is an attempt to immiserate the workers who have won land titles. Reducing the wages they receive from their tenants is just like union-busting. It is upsetting that the ‘left’ has imported libertarianism.” How is this different from your implied defense of individuals’ holding indefinite title to characters, melodies, and designs?

Something has gone wrong, when owning patents on seeming common-sense ideas implemented in software and harrassing large corporations with litigation constitutes a successful business model.

On the contrary, something has gone wrong when the instinct of people who think of themselves “on the left” is to be concerned about the bloated revenues of large corporations supposedly under siege by people who create technology or art by working.

It’s striking that libertarians are concerned about “rent” in the form of payments to workers for their creative work, but not about rent in the form of – rent. Landlords sweeping people from their homes so they can convert apartments into luxury condos or driving small business from commercial space by extracting higher and higher payments is apparently ok. The actions of shareholders and bondholders to loot the pension funds of workers in profitable companies is apparently legitimate rent extraction but that of a musician who wants to be paid for works constructed by “sampling” her creative labor is not. The common theme is that “work product” is seen as the legitimate property of a corporation, but not of a worker. Not surprising. We live, after all, in a society where the plight of a billionaire sports team owner forced to share some fraction of earnings with the athletes who actually create value is considered more tragic than the plight of a debtor whose debts have been picked up at a discount by some vulture and who is then consigned to the criminal law system.

Libertarians have not changed – the same skewed moral compass and fantasy view of the world was evident 30 years ago. But what has changed is that their viewpoint has become so uncritically accepted among “liberals” and “leftists”.

@46In a certain sense, if I can’t link to it, or if I can’t copy and paste from it, then it doesn’t really exist. It’s not living. It’s like an artifact of archaeology — like some papyrus scroll, etched with Sanskrit, slowly rotting in a museum basement.

This is a serious overstatement. It compares bricks-and-mortar libraries and bookstores to museum basements, which is inapt, to put it mildly.

…all the fulminating about corporations obscures the reality that the workers, the people who create music/writing etc. are to be transformed into wage workers at best, and more likely into casual laborers…

“Are to be”? The use of the future imperfect here begs an entire truckload worth of questions: what do you think the average working writer or musician is right now? Have you ever actually met a working artist?

Usually when rootless_e is complaining about leftists and liberals, he means people that criticize President Obama. His sensible centrist moral compass is always set to correct so you can trust his non-fantasy views to be exquisitely weighted with both sides doing it wrong.

and “The anti-copyright argument is basically the union-busting argument and all the fulminating about corporations obscures the reality that the workers, the people who create music/writing etc. are to be transformed into wage workers at best, and more likely into casual laborers.” is not well thought through, since this is the current way the corporations that control the major content reproduction mechanisms are using to maintain control. I guess one shouldn’t fulminate about this and everything will be hunky-dory

something has gone wrong when the instinct of people who think of themselves “on the left” is to be concerned about the bloated revenues of large corporations supposedly under siege by people who create technology or art by working.

Sure, but it may be that current copyright law extracts more from human people to bloated corporations than the other way around. To start with, when the threat is lawsuits, as with copyright, the big have an edge. The chilling effect of locking up the littoral of recent works is harder on mortal people, too: capital can sit on its backlist and maybe cross-license with other capital.

The bitter case would be one in which current copyright unfairly damages one set of Real Human Creatives, and proposed copyright unfairly damages another set of equal size and virtue.

It depends a lot on what frame of analysis is being applied to the phenomena.

On a level of almost microscopic intellectual case analysis, copyright and patent are distinct and conceptually different in many ways.

But, intellectual property policy, can be viewed, at an opposite extreme, in a macroeconomic policy frame, as an evolving solution to the problem of giving value to money and debt. In that frame, housing and suburban expansion, which underwrote the New Deal model, is dead as a driver of the macro system, and changing property law, including IP, is a way of strengthening rent extraction in other areas, to give the dollar a new financial understructure — one more appropriate to a globalized plutocracy operating a financialized economy.

On an intermediate level of analysis, evolving IP drives a changing industrial structure and is part of a general change in property law, disempowering the individual. Software and content (music, movies) is settling into a two-tier structure. There’s a legally legitimate sector, which is paying nominal prices, which prices are outrageously uncompetitive, and a legally ambiguous sector, of tolerated piracy, which functions as a kind of safety valve cum system of potentially oppressive control.

So, a lot of software, movies, music, porn, e-books, etc., is available thru this two-tier structure. You can pay full price, or you can have it “free” thru a black/grey market channel, with some degradation of quality, perhaps, or with some other risk, including the (mostly remote) risk of prosecution. (And, the prosecution can entail draconian fines or punishment, for the rare victim.)

I know a lot small businesses, which pay for “some” of their software programs, and “steal” the rest. Some software publishers are at war with the Pirate Bay, the (defunct?) Megaupload and other pirate schemes, but others seem to tolerate this “free” distribution channel as way of preventing potential competitors from gaining traction in the marketplace, while letting creative stratups — the consumers of professional software — to get started on a shoestring.

I generally find your comments to be pretty helpful, but a little at sea with this one. A couple of things:

That’s because property rights are metaphysical.

I can think of ways to make this come out true (I do do philosophy!), but it’s really an odd thing to say. Property rights are artefacts of specific legal and institutional regimes, regimes constructed by human actions, and and so also changeable and revokable by other human actions. Unless you’re a Lockean fantastist, there are no property rights in the state of nature.* So I really don’t see why I should start giving metaphysical status to property rights.

The moral imperatives are prescribed, as part of the design, to make the institution function, and they are particular and subsidiary to the institutional design.

This seems to get things the wrong way around, I’m thinking. Well, there may of course be moral imperatives that are grounded in or licensed by, etc., the institutional design. But when it comes to questioning the institutional design itself, we’re going to have to rely on some sort of prior moral intuitions (prior relative to the design). I just don’t see how you get around this. Frankly, no one even tries to: there’d just be no argument left. So, CB’s approach is entirely to the point here. The only way we can go about answering this sort of question is by testing our intuitions against what empirical evidence we have regarding different regimes and their reasonably expected consequences.

Ok. That’s a whole lot of methodology. Regarding the actual question, i.e. Henry’s questions in the OP, I also don’t see how the answer couldn’t be emphatically yes. (Also, if rootless is insistently arguing for X, not-X is likely true.) For one thing, isn’t it the case the vast majority of the actual producers—artists, that is—fare really badly under the current regime? This has certainly long been my impression with regard to musicians, e.g. (thinking of pop music, broadly construed, here).

*Just in case someone decides to get all: There was never any state of nature, etc. Yes, got that. It’s just a way of making the point that property rights are based in nothing other than particular legal institutions.

“Something has gone wrong, when owning patents on seeming common-sense ideas implemented in software and harrassing large corporations with litigation constitutes a successful business model. “

But it seems common.

@75
““Are to be”? The use of the future imperfect here begs an entire truckload worth of questions: what do you think the average working writer or musician is right now? Have you ever actually met a working artist? “

Yes. I find few of them want to give up copyright. I know quite a few.

@77
“Usually when rootless_e is complaining about leftists and liberals, he means people that criticize President Obama. His sensible centrist moral compass is always set to correct so you can trust his non-fantasy views to be exquisitely weighted with both sides doing it wrong. “

Beautiful illustration of both Obama derangement syndrome and the use of labels like “centrist” to replace thought.

@78
“Sure, but it may be that current copyright law extracts more from human people to bloated corporations than the other way around. To start with, when the threat is lawsuits, as with copyright, the big have an edge”

Works both ways. It is instructive to read Dickens and Twain on life before copyrights – nothing like that Libertarian fantasy that Rajiv seems to find convincing. Consider what happened to African-American musicians in the days when they did not have legal resources to defend copyright – few of them saw an effing dime. Bands like Led Zepplin, their record companies, and so on made millions from the works of people like Willie Dixon. The dynamism of the technology industry has, in a large part, been due to the mix of public domain work and IP protection. There is no way that Google would have become such a powerful force if Yahoo and Microsoft had been just able to copy their work or … many good examples.
You will not find too many successful musicians – and by this I don’t just mean rich ones – who would love to give their copyrights up and live at the tender mercies of publishers.

@72
I am deeply skeptical of markets, but having spent time in interior China in the early 1980s, a society where all power is exercised by the state and nothing is privatized doesn’t appeal much to me.

@68
“Money in its extended forms as debt, is, like intellectual property, a form of fictive capital, and ultimately, the only uses for fictive capital are frauds, usurious extraction and gambling — all species of casino capitalism”

What is non-fictive capital?

@69
“OK, so I’ll turn this around on you. “Land titles are labor rights, even if often abused and exploited. Land-value taxation is an attempt to immiserate the workers who have won land titles. Reducing the wages they receive from their tenants is just like union-busting. It is upsetting that the ‘left’ has imported libertarianism.” How is this different from your implied defense of individuals’ holding indefinite title to characters, melodies, and designs?”

I’m not advocating indefinite title to anything. I will argue, with Jefferson, that freedholders of some sort are more independent than those who live at the whim of the landlord. But that doesn’t translate into a defense of rent in all forms. Obviously, owning land and extracting rent from it is different from making something and extracting payment from its use. What impelled me to comment here was that that claim in the initial post:
“Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly”
I think this is sort of correct in the sense that “laissez faire capitalism” is the ideology of the use of capital to extract rent from productive work but it’s also plainly deceptive in its (standard glibertarian) implication that other forms of property do not involve government instituted rights. To me, the author of a book has a far better claim to rent than the “owner” of a building.

The arrival of a major new dick commenter in a blog comment section is always an exciting time. You get used to the pecadillos of the existing dick commenters, so when a new one shows up, sucking the air out of every discussion, you learn that the world can still surprise you, as you experience new sensations of irritation that you never felt before. The combination of Obama puffery and copyright-is-the-true-left position is not one that I would have invented. Again, God proves himself to be the superior craftsman.

I think it’s important to distinguish between two issues – whether copyright benefits artists, and whether it promotes creative expression. There’s no doubt that some artists benefit a great deal from copyright. JK Rowling for instance would not be anywhere near as affluent without copyright as she now is, though she would still be a millionaire several times over. Boldrin and Levine are quite explicit about this. What they deny is that copyright promotes creative expression on balance.

_ Property rights are artefacts of specific legal and institutional regimes, regimes constructed by human actions, and and so also changeable and revokable by other human actions._

The strong anti-Lockean position here is, as ever, asserted with great confidence. However, the propensity of small children to assert (and, crucially, to recognize) claims to exclusive possession, a propensity not based in “legal and institutional regimes”, suggests a somewhat more qualified picture. There’s really quite a lot of work on this by developmental psychologists now, work which makes the “purely conventional” “anything goes” approach look really implausible.

My guess is that the stubbornness of the anti-Lockeans here is explained because they (example Nagel & Murphy) think that the purely conventional line gives them an easy block to libertarian arguments. But actually, it is perfectly easy to accept pre-institutional elements to property rights without sliding all the way to Nozick.

It’s possible that I’m missing something (since the last time I studied intellectual property law was 1997), but isn’t the policy brief arguing roughly what happens with patents now? ie registration of your work, monopoly for X years (where X=smallish) and then free rein?

Well, except that you could still have copyright for 46 years , subject to payment of fees based on percentage of profit (note: not the same as a tax, at all, m’kay?), and patents are only 20 years.

I have to say that as practical models go, their suggestion isn’t a terrible one, especially when compared to the current one. It allows for a continued monopoly, thus protecting authors/artists, say, whose income relies on long term sales, but you’ve got to pay your dues to the public purse, but only on the basis of actual sales. So if you turn out to sell jack-shit, that’s what you pay. Also, a maximum of 46 years is considerably less than it currently is.

However, this bit did make me giggle: The Federal government has gotten way too big, and our copyright law is asymptom of the expansion in the size and scope of the federal government – if only its obvious boiler-plate “Federal is bad” qualities.

Also, it is tiresome for its US-centric nature, and its obsession with the intentions of Founding Fathers and the US Constitution blah blah blah. Intellectual property is an international game, and any policy paper that ignores that is incomplete, to say the least.

“Copyright violates nearly every tenet of laissez faire capitalism”, sure for the monopoly, but clearly not because it

” is a system implemented and regulated by the government, and backed up by laws that allow for massive damages for violations. These massive damages are not conventional tort law damages, but damages that are vastly disproportionate from the actual damage to the copyright producer”

In the USA, the 1976 revision to copyright established terms that long outlast the author (50 years after death for individuals). And then in 1998 it was made even longer, 70 years, and the change was retroactive. Is “being heir to a famous author/musician/director” a kind of work? Because for almost 40 years changing copyright in the USA has not been about protecting living workers but about ensuring that the tiny minority of works that remain profitable long after their creators expire continue to collect rents for their titular holders.

From 1909 to 1975 the USA granted copyright for an initial 28 years, allowing a single 28 year renewal. Perhaps they should have allowed a third extension to account for the rare centenarian who created works while a teenager. But extensions for the creations of the dead, and retroactive ones at that? Absurd, if your interest in copyright lies with protecting workers.

rootless @16 says “Copyright and other IP are labor rights – even if often abused and distorted. Of course multi-national marketing organizations and their flacks hate the idea of paying. Let’s go back to the good old days when artists and musicians had to find patrons and kiss their feet.”

Perhaps I’m only imagining the excluded middle argument apparently presented here — where you either have today’s copyright laws or artists need patrons. His (?) posting since #16 has reinforced my perception of someone defending the law as it stands, regardless of its tremendous and ever-increasing scope beyond that of protecting workers.

And I should add that since the 19th century Western European nations have had copyright terms of life plus multiple decades. All term changes since have been purely upward, and never had anything to do with living workers. Funny that repeated efforts at international harmonization of copyright laws only harmonize upwards in duration.

“Working writer” here. A few facts: many newspapers and magazines these days force freelancers into copyright-buyout contracts or they just won’t commission. So the situation is already one of day-labour/piecework. Meanwhile, most advances for books not pitched by celebrities work out to far less than minimum wage for the labour expended. Comfortably salaried academics who don’t expect to sell more than 50 copies of their books can of course look on this situation with equanimity; personally, I simply wouldn’t bother to write books if I didn’t retain copyright in them. But then many people who are indifferent or actively hostile to my books might be OK with this! I don’t think the world owes me a living, but nor do I think I owe the world a great deal of intellectual work for no reward exchangeable for food and rent.

” JK Rowling for instance would not be anywhere near as affluent without copyright as she now is, though she would still be a millionaire several times over. Boldrin and Levine are quite explicit about this. What they deny is that copyright promotes creative expression on balance.”

They are quite explicit, but don’t advance any evidence. What is the incentive for a large international publishing house to pay Ms. Rowling millions absent copyright? One can easily imagine an editor impressed with the initial volume giving it to an in-house professional to finish and extend. Their argument in this case seems as credible as their theory that US steamship builders and the high pressure steam engine – which did not use a condenser – were impeded by Watts UK patent on condensers.

In the libertarian freetard utopia where bands make no money from recording music but happily profit from touring, don’t they still in fact require a “government-granted monopoly” on the right to tour and sell tickets as that band?

Eliminating copyright on, say, the text of a computer program, would not primarily benefit individual workers vis-a-vis their employers. It would benefit, to some extent, open source. But by benefiting open source, it would also benefit producers of knock-offs. It would benefit anyone, corporate or individual, who was in a position to claim and enforce a greater right to the thing, it just wouldn’t be an IP right. Either open source would be in an alliance with shady operators, or they’d have to exclude the shady operators, with some kind of border maintaining process.

We’re not talking about, “you write a doubly-linked list for IBM using IBM equipment (or even “invent” the doubly-linked list, because you don’t know the literature), and IBM owns all the doubly-linked lists you may ever want to write in your lifetime,” kind of stuff. Any more than Niklaus Wirth owns you and your first-born because you’re using “his” doubly-linked list.

I heard something recently about the deplorable status quo w/r/t permissions for 20th-century foreign music in the US. (Apparently it was instituted to placate the former USSR in the 1990s, the potential revenues from Shostakovich presumably being very high.) I’d guess orchestras would like to change that current status quo, without giving up rights to royalties from recordings.

To me, the author of a book has a far better claim to rent than the “owner” of a building.

Buildings, like books, newspaper stories, songs, recordings, software and movies are built by labor. In every case, a capitalist can hire someone else to perform that labor, leaving them ownership of the final product. In books, this might not be as typical as it is for buildings. ( Though I certainly know people who own buildings that they built themselves!) But with software and movies it is–the vast majority of people working on their production will own no part of the copyright. And we should note that the software and movie/tv industries are larger than the publishing/recording industries–and I know lots of anti-copyright programmers (and none who are pro-patent).

Though, I wonder if it might be better to regulate each form of intellectual property differently. Since everyone cites musicians and authors for sympathy rather than software developers, perhaps that’s because music and writing are different kinds of work than software–a song represents an individual expression in a way that a spreadsheet does not. Of course, this wouldn’t be an argument for the rights of labor, but then, it never was–what the pro-copyright author or musician is seeking is not the right to build capital with labor, for any worker can use their wages to purchase capital. What they are seeking is the ability to make a living performing this kind of labor–they want to express themselves as professional musicians rather than as professional accountants*. I’m very sympathetic to that desire, but I don’t think what I feel is leftist sympathy–the left part just yells “get off your high horse and do boring work like the rest of us!” From a social justice perspective, a world in which only boring careers made money, while all interesting work was performed as a hobby, doesn’t seem so bad to me.

But one thing I’m not clear on–since we all seem to agree that the lives of most authors suck under the status quo (and since a member of my family works at the local newspaper I can definitely affirm this**), what exactly are copyright enthusiasts proposing to do about this? Copyright certainly imposes costs on lots of other laborers (people who don’t own IP paying rents to others who do, amateurs and small-scale producers are restrained (e.g. your home movie or documentary has a radio playing in the background, thus illegal), so it isn’t enough to show that writers prefer that copyrights are enforced–they have to be doing more good than harm. And if the condition of most writers is so terrible–and it is–it’s going to be hard to show that.

* Actually, it’s even more specific–they want to express themselves as writing or recording musicians, not as performing musicians. But lots of people work solely as performing musicians, playing other people’s songs, and it seems like those laborers would be better off if copyrights were looser.

** But note that it isn’t piracy that’s ruined newspapers. The problem isn’t readers hacking through paywalls, it’s that as soon as they see a paywall they go read something else.

it’s one thing to say that some type of “claim to possession” is universal and even innate. But that still leaves open the question of how much that claim need involve the same package of rights as canonical private property , and what is the appropriate domain of those claims. We can find people asserting property-like rights over other persons in a very wide range of contexts, for example, but that doesn’t mea that we want or need our own institutions to recognize rights of that kind.

The universe of possible “claims to possession” is quite a bit wider than private property in the strict sense, so I think there is a lot of scope for convention here without violating the bounds of psychological plausibility. Even just considering property as such, the actual legal rights it entails vary enormously across time and the type of property, so the idea that *some* type of ownership is unavoidable, even if true, doesn’t get us very far.

Personally, I think the package of rights associated with scholarly production would probably be a better fit for the claims we think artists should exercise over their work. As a scholar, you can’t in general restrict access to or reproduction of your work. But you do have an absolute, inalienable right to be acknowledged as its creator by anyone who uses it. This right is’t directly monetizable, but it indirectly provides a livelihood for scholarly creators by allowing a more or less meritocratic, stable yet open system for the distribution of academic positions. Without proposing that a system of publication and tenure could completely replace copyright as a way of respecting the moral claims of creative artists and providing them an income, I think there is certainly substantial scope for shifting from the latter to the former.

I also think that the scholarly model respects our moral institutions at least as well as the tangible-property model. Even on a thread like this one, if you were to use a nice phrase or interesting link from some earlier commenter without acknowledging who you got it from, that would be recognized by most of us as morally wrong.

So again, there are lots of “claims to possession” that aren’t property. And even if we accept the idea of “IP,” there still is a lot to be negotiated. For instance, everyone recognizes a fair use exemption, but how wide should it be? Perhaps fair use should be restored to what it was in the 1980s, or perhaps it should be expanded to cover any use that is not producing a profit, or maybe that’s too broad. Anyway, saying that *some* kind of property right is morally and/or psychologically required does us precisely no good in deciding how broad the fair use exemption should be.

So it seems to me that the anti-Lockean position is right in terms of all the practical questions around copyrights and so on, even if it isn’t true at the most abstract and universal level.

But with software and movies it is–the vast majority of people working on their production will own no part of the copyright.

Yes, but they retain some kind of moral right to be recognized as having contributed. In most cases (excluding things like contractually-obligated secret ghostwriters), they don’t give up the right to put “I did this” on my resume, or to discuss it professionally, much less allow their employer (even in cases of “work for hire) to choose a name to assign. (In cases of patents, a manager or senior person may be the only name on the patent, in some institutions, but generally, even the most egotistical and deluded senior people don’t believe they actually did everything when they had collaborators, and don’t say things like, “you aren’t allowed to say you contributed anything, or it will take away from my achievement and my reputation.”) It isn’t clear to me whether abolishing IP is meant to abolish that kind of moral right–and things like “identity,” where you can’t use Marilyn Monroe’s “image” without permission–but this thread has already gone well past IP in the narrow sense of copyright.

Copyright certainly imposes costs on lots of other laborers (people who don’t own IP paying rents to others who do</blockquote?
What is this imposing costs of which you speak? No one is forced to buy books or any other copyright-protected products.

Th obvious difference between buildings and music, books, movies and so on, is that use of buildings is rival while use of music etc. is not.

Of course some buildings can function on a public domain basis — museums; hostels; plazas and parks. But bedrooms, kitchens, workshops, classrooms, etc. are of much less social value without some enforced rule about access to them. That rule doesn’t have to take the form of private property, but some uses are going to have be excluded, just as a matter of physical necessity.

The difference between IP and tangible property issue isn’t that the owner of one has a better moral claim to it than the owner of the other — as consumatopia says, they both are acquired the same way. The difference is that intellectual property involves social costs that tangible property doesn’t because, the alternative in the case of intellectual property is universal access while the alternative in the case of tangible property is a different set of restrictions. So for eliminating property rights over tangible goods to be socially beneficial, the new uses have to be more valuable than the current uses; while in the case of IP, it’s sufficient that the new uses have any positive value.

Going back to Chris B. and anti-Lockeanism, the reason we describe certain norms as conventional is not (just) that we think this is true as a matter of historical fact; it’s because we wish to ask what those norms *should* be. Human beings are not blank slates with regard to any kind of social behavior; it remains true that our political constitutions are capable of being based on reflection and choice.

“What is the incentive for a large international publishing house to pay Ms. Rowling millions absent copyright? One can easily imagine an editor impressed with the initial volume giving it to an in-house professional to finish and extend.”

Ms. Rowling can sign a contract with a publisher that requires publication of her manuscript unaltered and pays her a substantial advance, plus a share of revenues. This does not require any restrictions on what others might subsequently do with a legally owned copy of her work. British authors entered such contracts with US publishers routinely in the 19th century.

Why would a large international publishing house do this? For the same reason as Norton and Macmillan both published the 9/11 Commission Report, which is not copyright protected. Norton’s version alone sold over a million copies even though the content could have been downloaded for free. Profit was estimated at a dollar a copy. Ms Rowling could further leverage her reputation by selling signed copies, consulting on movies, etc. There’s no question that she would be very well compensated, though nowhere near as affluent as she now is. Would the lower compensation affect the quality or quantity of her creative output? I doubt it.

It’s really misleading to compare copyright protection with ownership of land or financial assets. One cannot make copies of landholdings, and one cannot increase the value of a firm by making copies of share certificates. Copyright restricts what an individual can do with a legally owned copy of a product. Producing additional copies has effects on prices and distribution, but does not damage, destroy or require appropriation of existing copies.

they retain some kind of moral right to be recognized as having contributed.

Exactly. The sooner we recognize that “IP” and the rights of creators are not the same (and don’t even overlap that much), the sooner we’ll be able to have a sensible discussion. Limiting or abolishing IP doesn’t in any way imply reducing the other kinds of rights of creators; more likely, it involves making them stronger.

The benefits of universal access to food are obvious, so clearly we should force farmers to give their crops away, keeping only what is required for their own subsistence. As I airily pontificate about this as someone who has never even seen a sheep, I see no reason why this would dissuade them from continuing to farm. After all, they probably love doing it!

Ms. Rowling can sign a contract with a publisher that requires publication of her manuscript unaltered and pays her a substantial advance, plus a share of revenues. This does not require any restrictions on what others might subsequently do with a legally owned copy of her work. British authors entered such contracts with US publishers routinely in the 19th century.

When the unknown Ms. Rowling, on the dole, sends her manuscript out to a publisher, their incentive to offer her millions is what? And your history of what happened in the 19th century is based on Libertarian Fantasy Commerce. Charles Dickens could not get decent payments for his works in the US – at the height of his popularity. What do you think happened to less popular authors? Publishers, being interested in profits, saw little reason to pay someone for what they could get for free. Similarly, Mark Twain had incessant troubles with Canadian publishers. And this doesn’t even scratch the surface of all the “improved” versions that publishers commissioned. “hey that book by Rowling Scholastic published is doing well, let’s get Jack to make it more American maybe put in a vampire love interest and Fox can serialize it and do a movie deal”

Why would a large international publishing house do this? For the same reason as Norton and Macmillan both published the 9/11 Commission Report, which is not copyright protected.

Nobody suggests publishers could not make money without copyright – in fact they did and do. The issue is whether AUTHORS would get paid. Of course, Libertarians want a world that consists of all-powerful employers and cowering wage slaves, so they don’t care.

Publishers can’t make money without content, and they will pay for content with or without copyright. It’s just that the contracts would be different. For promising but unknown authors publishers have very little to lose by offering contracts that promise large sums only if sales are correspondingly large. For established authors advances can also be large. Prices would be lower (to preempt copying, as in the case of generic drugs produced by the original patent holders), sales correspondingly higher, compensation to blockbuster authors lower. But the quality and quantity of creative expression, in my opinion, would not be diminished. This is the key point.

Anyway, you’re using that dreaded “libertarian” logic. You don’t have to work in my factory, so you can’t say that I’ve imposed these degrading work requirements on you. No one forced you to work here.

Publishers can’t make money without content, and they will pay for content with or without copyright.

History, not to mention basic profit seeking behavior, shows otherwise. Consider the first edition of Tom Sawyer, published without a penny of compensation to the author by a Canadian publisher that did very well from it. This is a clear case of Libertarian Ideology versus Reality.

But actually, it is perfectly easy to accept pre-institutional elements to property rights without sliding all the way to Nozick.

I really did mean that property rights are artefacts of etc.—exclusive, bequeathable rights in perpetuity, etc. Locke does seem to think that such rights exist in the state of nature. Which strikes me as madness.

I liked Ms. Rowling’s work, and I’m glad she managed to get a fair share out of not only the publishing industry but Hollywood (very rare for an author since 1970).

But her work is incredibly derivative of British boarding school fiction 1880-1970, Tolkien (and the subsequent revival of Norse-derived swords-&-sorcery fiction), and Dorothy Sayers among others. And there’s nothing wrong about that! (As Tolkien discussed in a letter). But the direction we are going right now is to lock down behind corporate vault doors forever not only text and characters but fundamental concepts and derivations. If that regime had existed in 1990 Ms. Rowling could never have written her own book.

Publishers can’t make money without content, and they will pay for content with or without copyright.

If they can persuade people that in order to become a person whose content a publisher wants to buy, you have to do a lot of unremunerated self-publishing–and not only that, but do your own marketing and market research to “build your brand”–or even that the criterion for getting paid is not having your stuff picked up by the big guys, but at some point after you’ve been picked up without (much) pay, getting tapped to be “really published” (or for some other thing, punditry, say, or showrunning, or whatever)–they don’t really have to. They only have to pay enough, and frequently enough, to keep the fish biting.

I doubt having a large group of people who think unremunerated self-publishing is its own reward, or even a moral imperative, would hurt very much, or would be worse than if they preferred working for a slightly less than middle-class wage.

@Tom Sawyer
But if no commercial, legit publisher would touch it for some reason (I doubt that’s the case, but it could have been), are we better off that the Canadian publisher pirated it, given that the alternative might be that we’d never hear of and remember Tom Sawyer, Huck Finn, or Mark Twain? Probably not. Certainly not enough better off that this kind of thing should be a goal.

Also, I was under the impression everyone knew this, but the open source movement depends on copyright and IP law. Copyleft, Creative Commons, and so on, would all be impossible without the traditional copyright regime, which they’re designed to work within.

Also, I was under the impression everyone knew this, but the open source movement depends on copyright and IP law. Copyleft, Creative Commons, and so on, would all be impossible without the traditional copyright regime, which they’re designed to work within. Opposition to copy protection, restrictions on copying technology, personal copying of software (and music) for personal use or for friends, etc., don’t necessarily imply opposition to copyright.

I have something to say about this, but first I will announce a new cartoon I put up last night, which is about government deficits and debt. Despite the dry topic, everyone will enjoy it. It has no “ecolanguage” flow-charting in it, so you may find it passable enough to send to your un-kookier friends. Indeed you find that you may wish very much to pass it on to them, because it may help us to win this fight:

I really think that this one is important. It should help remove much of the argument that comes out of misunderstandings. So please forgive me if I post this one all over the place — I actually try NOT to do that sort of thing. But promotion is a bitch.

Which actually gets me to my copyright point: small artists need strong copyright, because otherwise any profit will be almost impossible in the current socioeconomic system. There are too many ways to get ripped off by others who are big and small.

I stamp “copyright” at the bottom of my little videos because a Supreme Court lawyer personally told me to, though this was before YouTube stepped in to protect their moviemakers (because they are in the business of inserting Google ads upon them. The ads are aimed to be placed opposite the apposite eyeballs. Which is why Google bought YouTube.) Before YouTube’s (rather self-aggrandizing) protection of the videomakers’ intellectual property, which is to say before their advertising regime, I observed advocacy videos on YouTube that were ripped-off and reloaded by putzes of the opposing persuasion, with their own snarky narrations on top: “Here you see, this guy is lying,” etc. etc. “Libertarians” were doing this, I kid you not. You would have to follow copyright relaxation with a Byzantine maze of additional rules to prevent this sort of slimy shenanigans. Perhaps there would be lots of transaction costs in dealing with the resulting courtroom legalities.

For the pop-up ads at the bottom of the videos (YouTube also does full-screen “pre-rolls” replete with smiling actors, which I summarily uncheck, in preferences) — just for the little pop-up banner ads at the bottom: YouTube pays around US$.002 per view (two-tenths of one cent, per hit). So a million hits gets you around $2000.

I have made $70, all together.

I need those tenths of a cent! Although I have been a plumber in one of the toniest residential markets on the planet, that sucks a big goose egg, now.

With the copyright law as it is, all small artists are still stuck with a huge hurdle: “marketing”. I haven’t quite got it yet, but it is something about one degree of hand motion, allotted to each one of seven billion people, who have six degrees of separation.

rootless, covers of songs do not produce payments to the performers of the earlier versions. I think 28 years is time enough to make some profit, and extension to 100 years barely matters in the vast majority of cases, while imposing vast costs on preservation, historical research, and readers.

Of course, buildings are not free either. However, the elimination of rent would not lead to the production of more buildings in the way the end of copyright protection leads to a proliferation of works.

Lee A. Arnold: Is the public served by prohibiting propaganda from being dissected and challenged in that fashion?

This very nice post by Peter Frase is relevant here, I think. Much of the best creative work is done by people who don’t care if they get paid. It’s even quite arguable that *assuming they have sufficient time and income*, people do better, more personally satisfying creative work when they don’t expect to get paid for it. If we want to maximize people’s opportunities to be artists, writers, musicians, etc., our goal should be to maximize their chances of getting paid for that work, but to minimize everyone’s need to get paid for any work.

@121 – If the originator feels that his or her work is worthwhile and he or she should be allowed control over its expression, then the public is not served, no. The public can thereafter be served by promulgating clear rules of quotation and fair use, such as the established rules on word-counts in block-quoting from published books and journals, etc. Enacting this sort of policy in the realm of quoting video would require ubiquitous and cost-free image recognition software, which isn’t quite here yet. About the only sort of propaganda where ripping isn’t challenged is in the area of political posters, which is no wonder, since they are usually (1) short-term and (2) many of the people who create them could barely stand to defend them intellectually, so scrutiny is often not welcome by these creators.

If you’re doing anecdotes about copyright, I have a few. I’ll start with this one, about a ‘little guy’. Back in the 1930s and ’40s, one of my uncles (an illustrator) wrote popular songs much in accord with the musical styles of the times. He would send them off to various publishers. None were bought. However, periodically, he would hear a new song on the radio that sounded a lot like one of his, coming out of Tin Pan Alley, I suppose. Not exactly the same, but very similar. He went to a lawyer, and the lawyer told him that unless he had a lot of money, there was nothing he could do about it, because artistic similarity was a vague concept difficult to prove, and the music publishers of the day had more lawyers, money, repute and influence than he did. Eventually, he decided to put some of his songs together in a musical comedy. He worked on this project for months, and actually got to some kind of initial production stage with investors and writers and performers and such, when he was informed that he could not use most of his music because other people, with more legal muscle, had copyrighted material sufficiently close to his to make a case. Not necessarily a winning case, but one good enough to frighten off investors. In short, he couldn’t sue them, but they could sue him. There are actually quite a few cases like this, but of course they’re just anecdotes until someone adds up all the instances in which the rich prevail over the poor as against the poor prevailing over the rich. Given what I know of the courts, I have an idea of how that reckoning would come out.

@122 in the 1970s, even Milton Friedman was arguing for a universal basic income. As John Holbo pointed out, while Libertarians talk about autonomy and freedom incessantly, they are really about something else.

Alas, so many of these conversations about intellectual property quickly devolve into forceful critiques of the big bad media companies. This is deserved and understandable, but it’s also something of a diversion. Take music; while indeed, the majors have a history of terrible, anti-artist policies, most working musicians are not employed by them. Eventually, one wonders why there isn’t more curiosity about the effects of copyright policy on the good guys–for example, independent labels, with their fair accounting practices and progressive ethos. Or on artists who self-release their material. Indeed these are not new models. Independent labels were around in the 50s, and the more ideologically-driven variant that flourished in the nineties did result in a number of artists making a fair living (despite a climate of consolidating broadcast media)–and gave us industry-standard practices like the 50/50 artist/label split.

Indeed, so much of the discourse around these issues is animated by myth. @10 Guess how much of musicians’ income comes from live shows? (Hint: guess lower.) Guess what median income is for working musicians (Hint: lower still).

None of which is to say there isn’t a need for substantive copyright reform (shorter terms, streamlined sampling, etc)–to make the law serve the little guys instead of allowing the big guys to endlessly accumulate cultural assets. But we’d all be doing much better if we put the interests of creative workers themselves–rather than tech companies or big media–at the center of the debate.

I think you have understood my comment, more precisely and completely than my inarticulate remarks deserved.

For “metaphysical” try substituting “meta-social”.

I don’t have any problem with a moral critique of an institution from the outside — I’m not a moral relativist. If someone stands on Kantian categories, and condemns slavery, I understand the argument and readily assent to it. A moral critique from the inside, though, is bound to fail, imho, because “inside” an institution, morality and ethics are furnishings. It is like hiring an interior decorator to do structural engineering.

I suppose no one is still reading this — sic transit! but if there is (are?) the following URLs might be found moderately interesting. They demonstrate the sort of efflorescence which naturally occurs in the arts and which copyrightists desire to kill for the sake of Disney’s money. We begin with a Beyoncé video; then see a bit of a predecessor; then a tribute imitation (two versions) and finally the judgement of the artist in the middle.